Plaintiffs’ Position Re: Timing of Supplemental Briefing

Summary

In Case No. 4:21-cv-01236-O in the United States District Court, Northern District of Texas, Fort Worth Division, Plaintiffs state a position on the timing of supplemental briefing after the Fifth Circuit's opinion issued on Thursday, July 6, 2023. The filing responds to the Court's order of July 10, 2023, asking whether supplemental briefing should be filed presently or whether there is some reason to wait for the mandate to issue first. Plaintiffs agree that supplemental briefing is warranted but request that it take place after issuance of the mandate, which is set for August 28, 2023. The filing states that undersigned counsel is out of state on vacation with her family and would appreciate additional time to confer with clients and co-counsel.

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

U.S. NAVY SEALs 1-3; on behalf of
themselves and all others similarly situated;
U.S. NAVY EXPLOSIVE ORDNANCE
DISPOSAL TECHNICIAN 1, on behalf of
himself and all others similarly situated; U.S.
NAVY SEALS 4-26; U.S. NAVY SPECIAL
WARFARE COMBATANT CRAFT
CREWMEN 1-5; and U.S. NAVY DIVERS
1-3,

Plaintiffs,

v.

LLOYD J. AUSTIN, III, in his official
capacity as United States Secretary of
Defense; UNITED STATES
DEPARTMENT OF DEFENSE; CARLOS
DEL TORO, in his official capacity as
United States Secretary of the Navy,

Defendants.

Case No. 4:21-cv-01236-O

PLAINTIFFS’ POSITION RE: TIMING OF SUPPLEMENTAL BRIEFING

Case 4:21-cv-01236-O   Document 246   Filed 07/11/23    Page 1 of 4   PageID 7815

1

On Monday, July 10, 2023, the Court ordered the parties to submit their position on the
timing of supplemental briefing in this case after the Fifth Circuit’s opinion issued on Thursday,
July 6, 2023. Dkt. 245. Specifically, the Court requested the parties’ position on “whether that
supplemental briefing should be filed presently, or whether there is some reason to wait for the
mandate to issue first.” Dkt. 245.

Plaintiffs agree that supplemental briefing regarding the Fifth Circuit’s opinion is
warranted. But at this time, Plaintiffs respectfully request that the supplemental briefing take place
after issuance of the mandate, which is set for August 28, 2023. Undersigned counsel for Plaintiffs
is currently out of state on vacation with her family and has not yet been able to discuss the next
steps in the case with co-counsel and the Plaintiffs. Undersigned counsel would therefore
appreciate the additional time to confer with both clients and co-counsel to determine whether
further proceedings in the Fifth Circuit are warranted and to allow for the drafting of the
supplemental briefing.
CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request that the Court wait until after
issuance of the Fifth Circuit’s mandate to require supplemental briefing.

Case 4:21-cv-01236-O   Document 246   Filed 07/11/23    Page 2 of 4   PageID 7816

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Respectfully submitted this 11th day of July, 2023.

/s/ Heather Gebelin Hacker
KELLY J. SHACKELFORD
   Texas Bar No. 18070950
JEFFREY C. MATEER
   Texas Bar No. 13185320
HIRAM S. SASSER, III
   Texas Bar No. 24039157
DAVID J. HACKER
   Texas Bar No. 24103323
MICHAEL D. BERRY
   Texas Bar No. 24085835
JUSTIN BUTTERFIELD
   TEXAS BAR NO. 24062642
DANIELLE A. RUNYAN*
   New Jersey Bar No. 027232004
Holly M. Randall
   Texas Bar No. 24128002
FIRST LIBERTY INSTITUTE
2001 W. Plano Pkwy., Ste. 1600
Plano, Texas 75075
Tel: (972) 941-4444
jmateer@firstliberty.org
hsasser@firstliberty.org
dhacker@firstliberty.org
mberry@firstliberty.org
jbutterfield@firstliberty.org
drunyan@firstliberty.org
hrandall@firstliberty.org

*Admitted pro hac vice

HEATHER GEBELIN HACKER
   Texas Bar No. 24103325
ANDREW B. STEPHENS
   Texas Bar No. 24079396
HACKER STEPHENS LLP
108 Wild Basin Road South, Suite 250
Austin, Texas 78746
Tel.: (512) 399-3022
heather@hackerstephens.com
andrew@hackerstephens.com

Attorneys for Plaintiffs

Case 4:21-cv-01236-O   Document 246   Filed 07/11/23    Page 3 of 4   PageID 7817

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CERTIFICATE OF SERVICE

I hereby certify that on July 11, 2023, I electronically filed the foregoing document through
the Court’s ECF system and will serve a copy on each of the Defendants according to the Federal
Rules of Civil Procedure.

/s/ Heather Gebelin Hacker
HEATHER GEBELIN HACKER

Case 4:21-cv-01236-O   Document 246   Filed 07/11/23    Page 4 of 4   PageID 7818

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